FOI: The council which only wants one FOI request from you every 60 days

I’ve added another council to the metaphorical transparency naughty step, so it’s time for Chester and Chester West Council – ‘We’ll make you pay for FOI requests’ – and Kirklees Council – ‘We’ll release it if the council leader says we can’ – to budge up a bit.

Take a seat Nottingham City Council, for imposing its own cap on the number of FOI requests an individual can make before they are being ‘vexatious.’

The serial FOI-er in question is a chap called Andy Platt, who runs a blog called NCClols, which basically casts a critical eye over goings on at the city council. He has history with the city council, and used to be work for them, but as we know, FOI requests are supposed to be treated on an ‘applicant blind’ basis.

Now, the ability for an authority to reject a request on the grounds that the request –  and not the requester, a point made to me on Twitter last night – is vexatious has always struck me as bit of a grey area because it is so subjective.

ICO guidance suggests that the key to deciding whether an FOI request is vexatious is whether the request is likely to cause ‘unjustified distress, disruption or irritation.’

For a public body which is keen to hide something, then I suspect this is a bit of a god send. It’s suitably vague and what’s more, no public interest test needs to be applied to decide if they should still deal with the request anyway. In other words, authority decides you’re being vexatious, now sod off.

I imagine a lot of FOI requests cause irritation, but should a public authority be allowed to decide whether the irritation, distress or disruption potentially caused is unjustified?

It makes me think of a reluctant fat man placed on diet being asked whether he’s justified to eat cake on the grounds that he’s hungry. Of course, he’s going to say yes, if he thinks he can get away with it.

It also strikes me that such vagueness also potentially makes life difficult for FOI officers, the vast majority of who – in my experience at least – want to help get information out there. What do they do if an officer being asked to provide information comes back and says ‘I think this will cause unjustified distress if we release this?’

In its lengthy reply to Platt, NCC also says he can continue putting in FOI requests but warns that doing more than one in 60 days will probably lead to him being seen as vexatious because it will form a pattern. It cites ICO guidance on this – but the only reference I can find to 60 days is in relation to working out whether to group together same-issue FOIs for cost purposes.

Put simply, there isn’t a limit on how many FOI requests you can make, and it looks as though NCC is just trying to find a way to stop Platt from asking for information.

Should journalists be worried by this? I think so. Much like the council leader in Kirklees and the willingness of Chester to try and charge for FOI requests, this feels like a council interpreting rules in a way which suits them and creating its own legislation on the fly.

What’s more, NCC makes no bones about the fact its decision is based partly on how Platt uses the information: The blog’s name is part of their reason for refusal – presumably it’s the first time the use of LOL as shorthand for Laugh Out Loud has been part of a refusal – and also what they consider to be the ‘personal, derogatory comments directed at specific colleagues and councillors’ in the blog.

Interestingly, though, ICO guidance states:

“An important point is that it is the request, not the requester, that must be vexatious. You should not automatically refuse a request just because the individual has caused problems in the past. You must look at the request itself.”

Nottingham is doing that – seeing the name on the email and saying ‘oh no, not him.’

There is a solution to this: It’s the eradication of the grey areas involved in vexatious by the Government. Step one would be to insist all vexatious decisions are subject to a public interest test, which have to be published online.

It simply isn’t acceptable to have a get-out clause which allows a council to say ‘we don’t like what he does or way he does it so we’ll remove his right to ask for stuff.’ That’s exactly what Nottingham has done, with scant regard for what the guidance actually says.

The same council is effectively trying to place a cap on the number of requests someone can make – a very dangerous precedent which should alarm a lot of journalists.

I’ve not seen or heard of many cases of the vexatious refusal being used. I suspect it’s a cultural thing in councils. Those which like to keep secrets will use it to keep secrets.

Nottingham, by the way, also refused to publish spending data as ordered by the government on the grounds it would cost too much. It is the only council in the country to do so.

Maybe that’s just coincidence.

Regardless of his background or previous requests, Platt is a member of the public. Tightening up FOI legislation around vexatious – insisting on a public interest test for a start – appears to be essential.

15 comments

  1. Depending on how much of a geek you are (I am), you might find it interesting to review ICO FOI Policy/Lines To Take (LTT), which actually provides considerably more clarification on S14 (and many of the other exemptions as it happens) – S14 link: http://www.ico.gov.uk/foikb/FOIPolicyVexatiousrequests.htm.

    Extract:

    ” The Commissioner will consider the context and history of the request as well as the strengths and weaknesses of both parties’ arguments in relation to some or all of the following five factors to reach a reasoned conclusion as to whether a reasonable public authority could refuse to comply with the request on the grounds that it is vexatious:

    1) whether compliance would create a significant burden in terms of expense and distraction

    2) whether the request is designed to cause disruption or annoyance

    3) whether the request has the effect of harassing the public authority or its staff

    4) whether the request can otherwise fairly be characterised as obsessive or manifestly unreasonable

    5) whether the request has any serious purpose or value”

    There was some discussion on S14 on FOIman’s blog here: http://foiman.com/archives/291 including one of my semi-regular essays in comments (sorry – I did say I am a geek)which touches on this guidance

    1. Thanks for your comment and for the link. I still think Nottingham has overstepped the mark in this case by warning the chap that any FOI request will be treated as vexatious if he sends more than one every 60 days.

      I just think it’s a grey area which would benefit everyone if cleared up.

      1. Perhaps the $64,000 question is whether the same principles are applied to all requesters i.e. only one request every 60 days (which, personally speaking, I agree is unreasonable. Public interest is the key, as you have said).

        If the principles are not applied to all, why not?

  2. As you say, worrying stuff. I wonder if you know whether these same guidelines apply to the disclosure of information under Environmental Information Regulations (EIR) 2004?

    BTW, I had a request under EIR refused on the grounds that disclosure could damage the environment. The request related to a proposed supermarket development supported by the local authority right next to a SSSI and SAC. My council doesn’t do irony.

      1. Yes. On the grounds that disclosing a retail survey could highlight development opportunties for developers wanting to build supermarkets. Sounds reasonable, but I was asking for the part of the survey which dealt only with our ‘town’ (pop1,500), and which already has 1 supermarket, a Co-op store, a large Spar plus agreed planning for a Lidl – on top of which the council has been supporting an application for yet another supermarket. How many more supermarket development opportunties could the survey reveal? Errr…none.
        Anyway, it went to appeal, which I lost, but they stopped a further appeal by releasing a totally nonsensical redacted version. All too late for planning hearing, anyway.

      2. Thanks for the document – they refused under regulation 12(g) – disclosure could reveal development opportunties, etc. and thereby harm the environment.

        The “redacted” version I eventually received was basically a chainsaw cut and paste, with sentences from different parts of the document cut in half and welded together. Obviously, I have no way of knowing how much they removed as a result.

    1. This is interesting.
      I have recently had requests refused as vexatious by East Herts District Council.
      The Executive Director of Corporate Services at North East Lincs at the time of the Icelandic Bank fiasco left shortly thereafter to become S151 officer at East Herts Council.

      1. Alan Madin your on about. Yes funnely enough, i was classed as a vet*** respondant by him for complaining about the iclandic fiasco, shortly afterwards, the audit commision conducted a PIR and he moved you east herts with a heafty leaving package

  3. The vexatious complainant model used by councils is the last vestige of feudalism – it allows those in charge to punish citizens without having to justify their actions. For this reason it breaches the Human Rights Act Articile 6 – the right to due process before being punished. The absence of an appeal process is a further breach of Article 6. All local authorities base their vexatious procedures on the model provided by the Ombudsman. This model pre-dates the Human Rights Act. Every arm of government, including local authorities, must comply in full with the Human Rights Act. Of course if you want to complain about the illegality of the vexatious procedure to the Ombudsman, you will find that the Ombudsman is unwilling to acknowledge that their model is in breach of the Law of the Land. It needs one stout-hearted citizen to make a legal challenge against any coucil using the vexatious procedure to bring the system down. Count me in on contributing to a fighting fund.

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